Gray V Hurley

Neutral Citation Number: [2019] EWHC 1636 (QB) Case No: QB-2019-001070 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 25 June 2019 Before: MR JUSTICE LAVENDER - - - - - - - - - - - - - - - - - - - - - Between: Mandy C Gray Claimant - and - Hamish George Hurley Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jonathan Cohen QC and Marc Delehanty (instructed by Grosvenor Law) for the Claimant James Bailey QC and Cara Goldthorpe (instructed by Withers LLP) for the Defendant Hearing date: 11 June 2019 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Gray v Hurley Mr Justice Lavender: (1) Introduction 1. This is a dispute over jurisdiction. The Claimant, Mandy C Gray, and the Defendant, Hamish George Hurley, were in a relationship from March 2013 to 18 January 2019, when Ms Gray ended the relationship. On 25 March 2019 Mr Hurley commenced proceedings against Ms Gray in New Zealand (“the New Zealand Proceedings”). On 26 March 2019 Ms Gray issued the claim form in the present action and obtained an order for alternative service, pursuant to which she served the claim form on Mr Hurley by Whatsapp message. 2. The parties have made the following applications: (1) Mr Hurley: (a) challenges the jurisdiction of this Court; and (b) applies for: (i) the setting aside of the order for alternative service; and (ii) a stay of these proceedings. (2) If, contrary to her primary contention, she needed permission to serve the claim form out of the jurisdiction, Ms Gray applies for: (a) permission to serve the claim form out of the jurisdiction; and (b) an order retrospectively validating the service already effected. (3) Ms Gray also applies for: (a) an anti-suit injunction; and (b) a freezing order. 3. The hearing of these applications was adjourned from 8 May to 11 June 2019. Given the limited time available, and the undertakings given by Mr Hurley, the parties sensibly agreed that I should only deal with the jurisdictional issues, leaving the applications concerning service, Mr Hurley’s application for a stay and the injunctions sought by Ms Gray to be dealt with after I handed down this judgment. 4. As to jurisdiction: (1) Ms Gray contends that this Court has jurisdiction pursuant to Article 4(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Judgments Regulation”) because Mr Hurley was domiciled in England on 26 March 2019. Mr Hurley denies that he was domiciled in England and asserts that he was domiciled in New Zealand but, in any event, contends that: Page 2 Gray v Hurley (a) Ms Gray’s claim is outside the scope of the Judgments Regulation, by virtue of Article 1(2)(a) thereof; and/or (b) part of Ms Gray’s claim is subject to the exclusive jurisdiction of the Italian courts, pursuant to Articles 24 and/or 25 of the Judgments Regulation. (2) Alternatively, Ms Gray contends that this Court should assume jurisdiction pursuant to CPR 6.36 and sub-paragraphs (1), (15), (16) and/or (4A) of paragraph 3.1 of Practice Direction 6B. As to this, Mr Hurley contends that: (a) on parts of Ms Gray’s claim, there is no serious issue to be tried; (b) there is no good arguable case that her claim falls within any of the grounds set out in the sub-paragraphs of paragraph 3.1 of Practice Direction 6B; and (c) England is not clearly or distinctly the appropriate forum for the case to be tried. (2) Background 5. It is appropriate to consider Ms Gray’s and Mr Hurley’s life before, during and after their relationship, with particular attention to the matters at issue in this action, namely: (1) the acquisition of the following assets (“the Assets”): (a) a property in Italy known as San Martino; (b) a farm in New Zealand known as Mount Albert Station; (c) four cars (“the Cars”), namely: (i) a Ferrari 458 Speciale; (ii) a Pagani Huayra Coupe; (iii) a Pagani Zonda R; and (iv) a Ferrari F1; and (d) deposits (“the Deposits”) on two more cars: (i) a Pagani Huayra Roadster; and (ii) a Ferrari 488 Pista; and (2) substantial sums (“the Investment Monies”), totalling US$9,151,998, paid to Mr Hurley and others in respect of various investments (“the Investments”), particularly a proposed advertising software business, a proposed skincare business and a proposed business selling powdered juice known as “Zuma Juice”, as follows: Page 3 Gray v Hurley (a) a total of US$4,056,591 paid to Mr Hurley; (b) a total of US$2,354,961 paid to Bell Green Trading Limited; (c) a total of US$2,435,000 paid to Women of Wukar LLC; (d) US$1,827 paid to LX Management; (e) a total of US$151,476 paid to Sidley Austin LLP; (f) US$12,607 paid to CCA Inter-Serv Ltd; (g) a total of US$137,508 paid to Chetcuti Tax Advisors; and (h) US$2,028 paid to BTI Management. 6. The Assets (which are not the only assets acquired during the period of their relationship) have considerable value. San Martino cost €9.5million, and a further €9million has been spent on restoration and renovation. In an affidavit of assets sworn in the New Zealand Proceedings, Mr Hurley ascribed to the other Assets the following estimated values: (1) NZ$25million for Mount Albert Station; (2) over €11million for the Cars, made up of: (a) CHF340,000 for the Ferrari 458 Speciale; (b) €4.5million for the Pagani Huayra Coupe; (c) €2.85million for the Pagani Zonda R; and (d) €4-4.5million for the Ferrari F1; (3) for the Deposits: (a) €540,000 or €1million for the deposit on the Pagani Huayra Roadster; and (b) CHF30,000 for the deposit on the Ferrari 488 Pista. 7. The parties produced a great deal of evidence in advance of the hearing, including three witness statements from Mr Hurley and an affidavit and two witness statements from Ms Gray. Some of the statements which they made appear to be inconsistent with contemporary documents. Many issues are contested. In what follows, I will try to give an outline based on uncontested facts. While I have considered all of the evidence, I do not propose to go into all of the allegations and counter-allegations concerning, for instance, the nature of the relationship between Ms Gray and Mr Hurley or the effect on Ms Gray’s claims of any professional advice which she may have received in relation to the various transactions at issue. 8. I gave permission for Ms Gray to produce a short statement after the hearing dealing with one particular point, namely what happened on 8 to 10 April 2013. The statement Page 4 Gray v Hurley which she subsequently made dealt with some other points. I have placed no reliance on those parts of her statement. (2)(a) Ms Gray 9. Ms Gray was born in May 1969. She was born in the United States, but she is no longer a US citizen (becoming instead a citizen of St Kitts and Nevis in 2014, and also a citizen of Malta in 2017). In 1995 she married Randy Work, who became a successful investment manager. In 1998 she went to live with her husband in Japan. They had two children, born in 2000 and 2003. In 2005 they moved to Hong Kong. In 2008 they came to live in London. Ms Gray has lived in London ever since. Ms Gray met Mr Hurley in 2009 at KX Gym in Chelsea. He was her physical therapist. He started visiting her home for this purpose in 2011. Ms Gray separated from Mr Work in 2013. Her children were by then, and remained, in boarding school in England. (2)(b) Mr Hurley 10. Mr Hurley was born on 30 October 1972 in New Zealand. He remains a citizen of New Zealand (and also became a citizen of Malta in 2017). He studied physiology and physical education at the University of Otago between 1991 and 1998. He married in 1997. He came to live and work in England in 2002, obtaining a work permit on 5 November 2002, and his wife joined him here. He continued to live at various rented properties in England until early 2013. A document which he created in 2011 indicates that he spent only 491 days out of the United Kingdom in the 9 years between 18 July 2002 and 4 September 2011. In other words, he spent on average over 10 months a year in England during this period. 11. He did not retain a home of his own in New Zealand. When he visited New Zealand, he stayed with his parents. He claims to have visited New Zealand in every year from 2003 to 2011, but the document which he created in 2011 indicates that he only visited New Zealand three times between July 2002 and September 2011. 12. Mr Hurley worked as a neuromuscular therapist. This work was better paid in England than in New Zealand. In 2009 he was earning about £50,000 a year. Moreover, there were international opportunities in this line of work for someone who was able to travel freely from one country to another. Mr Hurley’s New Zealand passport did not allow him to do that. A British passport would have done. In 2007 he made an unsuccessful application for indefinite leave to remain in the United Kingdom. Mr Hurley and his wife separated in 2008. He made another application for indefinite leave to remain in 2011 (in respect of which Mr Work paid professional fees of over £21,000), but he effectively abandoned this application (which was deemed to have been withdrawn) when he left England in 2013.

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